Law & Legal Precedent 1

The First Schedule of the Civil Procedure Code, 1966 has undergone major changes through recent amendments brought about by Civil Procedure Code (Amendment of the First Schedule) Rules 2019 (G.N 381 of 2019). These changes are likely to speed up disposal of matters, do away with technicalities in favor of substantive justice and place more emphasis on extra judicial settlement of disputes.
Key notes:
• Substitute service by email: Email delivery status accepted as proof of service.
• Application to lift the dismissal order must be filed within seven (7) days.
• Decree entered on failure to file Defense executable after expiration of sixty (60) days.
The changes have introduced Electronic filing of Plaint, Written Statement of Defense, and service of documents and electronic assignment of matters to judges. Once the suit is filed, summons is to be issued within 14 days, (amendment of order V). The changes have also introduced substitute service by way of email, copied to presiding judge. Email delivery status is to be accepted as proof of service.
The changes have also introduced mandatory information to be included on Plaints. The Plaint must now indicate, Email address, fax number, telephone number and post code for the Plaintiff and for the Defendant as far as it can be ascertained.
The amendments has further ushered in major changes on Speed Tracks of cases, consequences of lapse of speed tracks, time within which to file Written statement of defense, extension of time to file Written statement of defense, time frame for mediation, consequence for failure to appear in mediation, conduct of mediators and persons eligible to mediate.
With the changes, extension of time within which to file a written statement of defense must be filed within seven days after lapse of the usual twenty-one (21) days from the summons. Application for extension of time may be done before expiration of 21 days and ruling thereto must be delivered within 21 days. The time extended within which to file defense is now ten (10) days, computed from the date of order extending the time.
Further to that, failure to file written statement of defense within Twenty one 21 days or time extended, the matter shall proceed ex parte. However, where the matter proceeds ex parte, the resultant decree will only mature for execution after expiration of sixty (60) days. This is also the time within which the Defendant can file an application to set aside the ex parte judgment. On second failure to file defense after ex parte judgment is set aside, the earlier judgment shall automatically be revived. The Decree and judgment therefrom is not appealable.
Order pertaining to preliminary matters, presumably application for interim orders and determination of Preliminary Objections to be determined after fourteen (14) days of completion of pleadings, ruling must be completed in further fourteen (14) days.
Failure to appear when the matter is called for Pre Trial Conference (PTC) may result into dismissal of suit, if it was the fault of the Plaintiff and striking out of defense or counter claim if the defaulting part is the defendant. Depending on the stage at which the case is, the court may enter judgment or make other orders as it thinks fit. However, the consequences here are discretional as the word used is ‘May’. The order made as consequences to attend the PTC must be challenged within Fourteen (14) days.
Life span of cases as determined by Speed tracks of cases commence to run from the date mediation/reconciliation or any other alternative is concluded. In other words, time spent in mediation shall not form part of a respective speed track. The changes have rewritten consequences of lapse of a speed track. Where the delay was caused by the Plaintiff, the consequence is dismissal of suit and if default was by the defendant, striking out of defense or counter claim. There is also option to proceed ex pare if plaintiff was yet to close his case and lastly, the court may proceed to determine the matter if the fault was by the Defendant and the plaintiff had closed his case. The language is couched in mandatory terms by use of ‘shall’. This means, once proven, this are unavoidable consequences. However, if court extends the life span of a case, the extended time shall not exceed half of the current time assigned for the matter.
Duration for mediation is now thirty (30) days but it could be shorter, if agreement is reached. Additionally, there are also new players in Mediation. Mediation can now be conducted by a judge, or magistrate, (active or retired) Registrar or deputy Registrar, a person with qualification in mediation or any other person chosen by the parties. However, if the choice is by the parties, the parties will bear the costs. The changes also added guidance for mediators including impartiality, fairness and justice. In the conduct of mediation, if participants will require approval during mediation, the continued contact with the person giving such approval is mandatory.
Further to that, failure to appear in mediation will result into dismissal of the suit if it was fault of plaintiff, striking out of defense if it was fault of the defendant. Application to lift the dismissal order must be filed within seven (7) days.
Lastly, adjournment by advocates conditioned to appearance in superior court. Adjournment by court clipped to 30 days. Reasons must be recorded.